Overview

Law, philosophy of
By Brown, Beverley MacCormick, Neil

DOI: 10.4324/9780415249126-T001-1
Version: v1, Published online: 1998
Retrieved January 22, 2024, from https://www.rep.routledge.com/articles/overview/law-
philosophy-of/v-1

Article Summary
Law has been a significant topic for philosophical discussion since its beginnings. Attempts to
discover the principles of cosmic order, and to discover or secure the principles of order in
human communities, have been the wellsprings of inquiry into law. Such inquiry has probed the
nature and being of law, and its virtues, whether those that it is considered as intrinsically
possessing, or those that ought to be cultivated by lawgivers, judges or engaged citizens. A
dialectic of reason and will is to be found in philosophical speculation about the underpinning
principles of law. On the one side, there is the idea that the cosmos itself, and human society
too, contain immanent principles of rational or reasonable order, and this order must be
capable of discovery or apprehension by rational (or ‘reasonable’) beings. On the other side,
there is the view that order, especially in society and in human conduct, is not found but made,
not disclosed to reason but asserted by acts of will. Either there is a ‘law of reason – and nature’
or there is a ‘law by command of the sovereign – or of God’. A third possible element in the
discussion may then enter, that of custom as the foundation of law.

Implicit in the opposition of reason and will is the question of practical reason: does reason
have a truly practical role concerning ultimate ends and nonderivative principles of action, or is
it only ancillary to pursuit of ends or fulfilment of norms set by will? Alternatively, does reason
already presuppose custom and usage, and enter the lists only by way of critique of current
custom and usage? In either case, what is at issue is the very existence of such a thing as
‘practical reason’ (see Practical reason and ethics). For law is about human practice, about
societal order enforced and upheld. If there can be a law of reason, it must be that reason is a
practical as well as a speculative faculty. The radically opposed alternative sets will above
reason, will oriented to the ends human beings happen to have. Norms and normative order
depend then on what is willed in the way of patterns for conduct; reason plays only an ancillary
part in the adjustment of means to ends.

A further fundamental set of questions concerns the linkage of the legal with the political. If law
concerns good order, and if politics aims at good order in a polity, law must be a crucial part of
politics; but in this case a subordinate part, for politics determines law, but not law politics. On
the other hand, politics may be considered at least as much a matter of actual power-structures
as a matter of speculation about their beneficial use for some postulated common good. In the
latter case, we may see law as that which can in principle set limits on and control abuses of
power. Politics is about power, law about the shaping and the limiting of power-structures. The
issue then is how to make law a master of politics rather than its servant.

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Overview
Law, philosophy of
By Brown, Beverley MacCormick, Neil

DOI: 10.4324/9780415249126-T001-1
Version: v1, Published online: 1998
Retrieved January 22, 2024, from https://www.rep.routledge.com/articles/overview/law-
philosophy-of/v-1

1. Law as reason
In the Republic, Plato depicts Thrasymachus, proponent of the thesis that justice is the will of
the powerful, as being refuted comprehensively by Socrates (see Plato §14). The refutation
postulates a human capability to discern principles of right societal conduct independently of
any formal enactment or legislative decision made by somebody with power. These principles in
their very nature are normative, not descriptive. In Aristotle, the same general idea emerges in
the form of noticing that whereas much that is observed as law is locally variable and arbitrary,
there appear to be fundamental common principles across different polities. Some principles
may then be legal simply ‘by enactment’, but others seem to be so ‘by nature’. Explorations of
the nature of humans as rational and political animals may then help to underpin the idea of
that which is right by nature, but that exploration is more the achievement of Aristotle’s
successors in the Stoic tradition than of himself (see Stoicism §18). Roman jurists adapted some
of the Stoic ideas of natural law in their expositions of the civil law, and subsequently, for
medieval and early modern Europe, the existence of the Justinianic (see Justinian) compilation of
the whole body of Roman law was held by many thinkers to embody in large measure the
promise of law as ‘written reason’ (see Roman law; compare Gaius; Bartolus of Sassoferrato;
Pothier, R.J.).

In any event, the greatest flowering of the Aristotelian idea came with its fusion into the
Christian tradition in the work of Thomas Aquinas (§13), hugely influential as this has been in
the developing of Catholic moral theology in the succeeding centuries. After at least a century of
relative neglect among legal scholars, especially in the English-speaking world, the last quarter
of the twentieth century has seen a strong revival of the Thomistic approach in the philosophy
of law (see Natural law), with contemporary thinkers developing the idea of the basic goods
implicit in human nature, and showing both how these can lead to the elaboration of moral
principles, and then how positively enacted laws can be understood as concretizations of
fundamental principles.

In the seventeenth century, other strands of essentially the same idea had led to the belief, for
example, of Hugo Grotius, that basic principles of right conduct and hence of human rights are
themselves ascertainable by intuition and reason (compare Pufendorf, S.; Stair, J.D.). Kant’s
representation of the principles of practical reason is the classical restatement of this position in
its most philosophically rigorous form (see Kant, I. §§9–11; Kantian ethics §1).

In a wide sense, all these approaches may be ascribed to rationalism, as contrasted with
voluntarism (see Rationalism; Voluntarism). For they treat law, or its fundamental principles, as
discoverable by rational and discursive means, independently of the intervention of any
legislative will. They do not, of course, deny the need for legislative, or adjudicative or executive,
will. Even if fundamental
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Overview
Law, philosophy of
By Brown, Beverley MacCormick, Neil

DOI: 10.4324/9780415249126-T001-1
Version: v1, Published online: 1998
Retrieved January 22, 2024, from https://www.rep.routledge.com/articles/overview/law-
philosophy-of/v-1

2. Law as will
But there is another possible account of higher law. It can be thought of as a law laid down by
God for his creation. The divine will, not the divine reason, must be the source of law. It cannot
be for created reason to presume to judge of the creator’s wisdom. The omnipotence of the
creator entails that the law will be whatever the creator wills it to be, and to be law by virtue of
that will, not by any independent reason and nature of things. Indeed, the nature of things will
be just what the creator wills it to be, and the names of things will be matters of convention
derived from human linguistic usage. Concepts are not essences that guide us to essential
meanings. Nominalism and voluntarism are inevitable bedfellows (see Nominalism).

It is therefore inaccurate to suppose that the theory of natural law as a kind of higher law
presupposes rationalism. There can indeed be a voluntaristic species of ‘natural law’, though the
voluntaristic tradition will more likely speak of ‘divine law’ or ‘God’s law’ than of natural law
simpliciter (see Austin, J.). Moreover, one element in the religious upheavals associated with the
Reformation was an insistence on the need for unmediated regard to the (scripturally revealed)
divine law, rather than to the custom or tradition of sinful human institutions such as the
Church. It is not for fallen human reason to set itself above or even beside the revealed will of
God. But that revealed will must be received as a law binding above all others.

In this state of things it becomes questionable whether to accept any human law at all; and, on
the voluntarist hypothesis, to see how law other than God’s law can have any obligatory force at
all. To the saving of human law there are only two possible moves: either it must be shown that
God in fact wills our obedience to the very kings and other superiors we actually have (as in the
theory of ‘the divine right of kings’), or it must be the case that the binding will arises from the
consent of human beings themselves, expressed through some original social contract. The
divine will then enters the picture only to the extent of making obligatory the fulfilment of
compacts voluntarily agreed, a point to which may be added a grimly Hobbesian
acknowledgement that covenants without swords are but words, so the true binding force of
the obligation of the law will derive from the effective might of the very ruler whom the social
compact institutes in that office (see Hobbes, T. §§6–7). In this Hobbesian form, natural law has
practically reached a vanishing point (though Locke’s response envisages the state of nature as
governed by reason in the form of a law of nature, grounding presocietal rights of human
beings to life, liberty and estate (see Locke, J. §§9–10). The greatest legal expression of the
Lockean vision of law, applied to expounding the English common law, is in the work of Sir
William Blackstone. The coup de grâce was administered by Hume and Bentham, the latter
having as his particular target Blackstone’s work. They argue that the social contract is a fifth
wheel on the carriage in either Hobbesian or Lockean form, since all the reasons that there are
for obeying the law that we have supposedly agreed to apply with equal force even if we did not
agree Weto it,
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Overview
Law, philosophy of
By Brown, Beverley MacCormick, Neil

DOI: 10.4324/9780415249126-T001-1
Version: v1, Published online: 1998
Retrieved January 22, 2024, from https://www.rep.routledge.com/articles/overview/law-
philosophy-of/v-1

3. Law as custom
Whence then comes the law? Hume ascribes it to convention and custom primarily, coupled
with reflection upon the pleasing quality (the utility) of rigorous observance of customary norms
(see Hume, D. §5). Bentham and Austin restrict the role of custom or ‘habit’ to the issue of
obedience. Whoever is habitually obeyed by the many in a numerous society is in a position to
enforce their commands by effectively coercive sanctions up to and including death. Thus do
they differentiate the positive law from other forms of so-called law such as scientific law, laws
of honour, or personal moral codes. Law is such by command of a sovereign, the one habitually
obeyed who habitually obeys no other (see Sovereignty).

Legal positivism of this stamp is an easy bedfellow with political utilitarianism, and programmes
of legal reform. Codification of law is an associated ambition, justified on utilitarian grounds (see
Utilitarianism; Beccaria, C.B.; Bentham, J.). Codification is also a distinctive phenomenon of the
early nineteenth century, product of the Enlightenment critique of the old customs of the ancien
régime, though also of spadework in the exposition of civil law partly achieved under the aegis of
late legal rationalism. After the Code Napoléon, promulgated in France in 1804, there followed a
century of codification and legislative modernization of law in many places, and with this
characteristically went approaches in legal philosophy that stress the essential emergence of
law from a sovereign’s will, or the will of the state as a rational association (in Hegelian vein; see
Hegelianism). Nevertheless, this movement produced its own counter-movements, stressing the
importance of the spirit of the people as the basis of law (see Savigny, F.K. von; Bryce, J.;
Jurisprudence, historical), or more prosaically locating it primarily in custom, a view particularly
popular in the context of the common law (see Common law; Selden, J.).

Twentieth-century critics of classical positivism accuse its authors of confusing ‘commands’ with
‘binding commands’ (see Kelsen, H.; compare Weyr, F.) or of mislocating the roots of legislative
authority in mere ‘habit’, rather than in the ‘internal point of view’ of those for whom the system
within which authority is exercised has normative force (see Hart, H.L.A.). The Kelsenian version
of positivism rests it on the necessary presuppositions for a value-free science of law, and other
thinkers have pursued further the question of ‘legal science’ (see Bobbio, N.); the Hartian
version rests it on the customs of at least the official and political classes in a state, whose
practices concerning the recognition of certain criteria for the validity of legal rules define the
ultimate ‘living constitution’ of a state, its ‘rule of recognition’ (see Legal positivism). Rival
varieties of Hartian positivism have become salient in recent decades (see Legal positivism,
inclusive versus exclusive).

A notable offshoot of or development from positivistic legal study has been the development of
ever-more rigorous approaches to conceptual analysis (see Legal concepts) and categorization,
seeking
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contemporaries in other traditions have taken a somewhat more psychologistic approach to the
task (compare Petrażycki, L.). Reflection on legal concepts as institutions or ‘institutional facts’
has led to developing an ‘institutional’ theory of law that transforms what was originally a
naturalistic conception into a positivistic one (see Institutionalism in law; Weinberger, O.).

Citing this article:

Brown, Beverley and Neil MacCormick. Law as custom. Law, philosophy of, 1998,
doi:10.4324/9780415249126-T001-1. Routledge Encyclopedia of Philosophy, Taylor and Francis,
https://www.rep.routledge.com/articles/overview/law-philosophy-of/v-1/sections/law-as-custom.
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Overview
Law, philosophy of
By Brown, Beverley MacCormick, Neil

DOI: 10.4324/9780415249126-T001-1
Version: v1, Published online: 1998
Retrieved January 22, 2024, from https://www.rep.routledge.com/articles/overview/law-
philosophy-of/v-1

4. Laws and values

One way or another, whether in voluntaristic versions or in those that place more weight on
customary or institutional aspects of law, nearly all forms of or approaches to legal positivism
have insisted on the strong value-relevance of positive law. The matter of doubt has not been
‘ought laws to be just?’, but whether their being just is a condition of their being genuinely legal.
The ‘scientific’ character of pure legal analysis has indeed been contrasted with the exercise of
moral judgment or moral sentiment, or the engaging in ideological argumentation, that is
involved in the critique of law as unjust or otherwise unsatisfactory from the viewpoint of
human needs and aspirations. Some, however, have thought that critique itself can have a
scientific or at least an objective basis, grounded in the fundamentals of human nature. Classical
utilitarianism and nineteenth-century law reform are a case already noted; they had successors
in the ‘jurisprudence of interests’ (see Jhering, R. von; Pound, R.), and, albeit with certain
qualifications, in the later twentieth-century ‘economic analysis of law’ (see Law, economic
approach to; Coase, R.H.).

The need to subject law to critique is obvious from many points of view, none more urgently
than that which takes note of the burdensome impact of legal sanctions on human happiness
and liberty. If laws characteristically carry punishments or awards of damages for their
infraction, some theory to justify penal and compensatory institutions is called for (see Crime
and punishment; Contract law, theories of; Justice, corrective). Whether there are any abstractly
stateable limits to the legitimacy of interference with liberty through legal intervention has been
another heated debate (see Law and morality).

Nevertheless, the positivists’ claim that they can combine an a-moralistic conceptual analysis of
law and its institutions with a readiness for critique of actual laws on moral and political
grounds, and with a last-resort readiness to disobey or defy the law when it is unjust to an
extreme, has been doubted by some. Gustav Radbruch felt himself driven by his experience of
the Nazi years (and also, perhaps, by the implications of the radical voluntarism of Carl Schmitt)
to abandon such a claim and to insist on a conceptually necessary minimum of basic justice in
anything we can recognize as ‘law’ at all. The interpenetration of equity with law, and the
interweaving of ideas of justice, equity and law, can be taken to point to a similar moral (see
Justice, equity and law), and idealistic approaches to legal theory give a deeper grounding for
such an approach (see Legal idealism).

Citing this article:

Brown, Beverley and Neil MacCormick. Laws and values. Law, philosophy of, 1998,
doi:10.4324/9780415249126-T001-1. Routledge Encyclopedia of Philosophy, Taylor and Francis,
https://www.rep.routledge.com/articles/overview/law-philosophy-of/v-1/sections/laws-and-
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Overview
Law, philosophy of
By Brown, Beverley MacCormick, Neil

DOI: 10.4324/9780415249126-T001-1
Version: v1, Published online: 1998
Retrieved January 22, 2024, from https://www.rep.routledge.com/articles/overview/law-
philosophy-of/v-1

5. Law as politics
However one takes one’s stand on will against reason, or on natural law against legal positivism,
most of the theoretical approaches so far considered give some way of accounting for the
independent existence of law as a distinct social phenomenon. Law’s independence, at least
when underpinned by an independent judiciary, has been held to promise the possibility of
effective control over arbitrary state action while at the same time guaranteeing at least the
justice of formal equality to citizens and the degree of predictability allegedly desired by modern
rational subjects. Here we have the ‘rule of law’ ideal that demands government under the
forms of law and law in the form of clearly identifiable rules (see Rule of law (Rechtsstaat);
compare Dicey, A.V.; Fuller, L.L.). Yet the mere existence of some body of sacred or secular texts
embodying rules of law is not enough for any socially realistic account of law, or for any
politically persuasive vision of the rule of law (see Social theory and law; compare Millar, J;
Renner, K.). The statute book is not self-applying or self-interpreting (compare Wróblewski, J.). To
secure the rule of law it is necessary to have prospective rules published to all. But, as L.L. Fuller
points out, it is necessary that they be interpreted in a reasonable and purposive way, and
faithfully carried into action by the officials of the state whose rules they are. How is this to be
secured?

Many schools of thought, chief among them the realists (see Legal realism) in Europe (see
Olivecrona, K.; Ross, A.) and in the USA (see Holmes, O.W., Jr; Llewellyn, K.N.; Frank, J.), have
stressed the widely discretionary character of legal interpretation, both in relation to the general
rules of the law, and in relation to the categorization of fact-situations as subsumable under the
law for one purpose or another. On inspection, ‘facts’ can turn out as elusive as ‘laws’, and the
study of legal processes of proof assumes a certain urgency (see Legal evidence and inference).
All in all, it is a serious and difficult question to discern what, if anything, can render decisions
reasonably ‘reckonable’ given the broad discretion vested in those who interpret the law.

One form of response has been to find that law is reckonable not on the basis of the official
rules and standard doctrine, but rather on the basis of the ‘situation sense’ of a judiciary with a
common understanding of political and policy objectives underlying law. These insights of the
‘realists’ have been carried forward more boldly by contemporary feminist jurisprudence, one
version of which finds social prejudice directing law through the biases of judges. Another
version locates an inner masculinity in the legal rules themselves, even and especially at their
most abstract; the asserted values of objectivity and impersonality ultimately come under
question as presumptions of doubtful desirability (see Feminist jurisprudence).

Within more mainstream jurisprudence the developed response to realism has been to work
out extended theories of the rule of law, acknowledging that law is more than positive rules but
arguing
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(including critical feminist) approaches argue that there are central fractures and fault lines
within the law, reflecting ultimately competing political visions of human association, often
summed up as individualism versus community-values (see Critical Legal Studies). Ronald
Dworkin’s argument for coherence and integrity in law evokes the idea of an interpretive
community, but seems too readily to assume that for any actual legal order there can be found
a single consensual interpretive project, even in principle (see Dworkin, R.; compare Legal
hermeneutics).

Taking an overall view, the project of establishing the rule of law as an independent base for the
critique and control of state action is put in serious doubt, since interpretation is through-and-
through political; and appeals to the rule of law can themselves be moves in a political game,
expressions of ideology rather than of higher values. It may be that in the end legal philosophy
is faced, today as at its beginnings, with this dilemma: either legal reasoning and moral
reasoning have that kind of in-principle objectivity proposed by natural law theory in its
rationalist versions, or the theatre of law is simply a theatre presenting endlessly the power-play
of rival wills and visions of the good. Many have sought a third way, not yet with acknowledged
success.

Citing this article:

Brown, Beverley and Neil MacCormick. Law as politics. Law, philosophy of, 1998,
doi:10.4324/9780415249126-T001-1. Routledge Encyclopedia of Philosophy, Taylor and Francis,
https://www.rep.routledge.com/articles/overview/law-philosophy-of/v-1/sections/law-as-politics.
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